Superior Court of Justice
CITATION: Jane Doe v. His Majesty the King in Right of Ontario, B.H., and Toronto Police Services Board, 2026 ONSC 4437
ONTARIO
BETWEEN:
Jane Doe
Plaintiff
– and –
His Majesty the King in Right of Ontario, B.H., and Toronto Police Services Board
Defendant
COUNSEL:
Tara Lemke and Gabriella Gader, for the Plaintiff
Michael Sims, Eric Wagner and Mariam Gagi, for the Defendant
HEARD: In chambers
Costs endorsement
Justice H. Desormeau
1The plaintiff's action against Ontario was dismissed following a ten-day trial. The parties made written submissions on costs.
2Ontario seeks costs of $516,118.14, inclusive of fees, disbursements and HST, on a partial indemnity basis. The plaintiff submits that Ontario should receive no costs.
3Costs are governed by s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure. The determination of costs remains discretionary. The court must fix an amount that is fair and reasonable having regard to the result and all relevant circumstances.
4Ontario was entirely successful at trial. Although I found that the plaintiff was sexually assaulted by B.H., I concluded that Ontario was not liable for that assault. The plaintiff's claims in negligence, breach of fiduciary duty and breach of contract were all dismissed.
5The result strongly favours an award of costs to Ontario.
6This was a complex proceeding. The allegations arose from events that occurred in 1987. The action was commenced more than thirty years later. The trial occupied ten days and involved extensive documentary evidence, expert evidence and difficult questions concerning the operation of the Witness Protection Program and the scope of duties allegedly owed by Ontario to people participating in that program.
7The amount claimed by the plaintiff was also significant. While I assessed damages at $260,000 in the event liability had been established, the claim against Ontario was dismissed in its entirety.
8I have considered the parties' settlement positions. The plaintiff delivered a written Rule 49 offer to settle for $750,000 plus costs and disbursements. Ontario submits, and I accept, that it offered to settle the claim against it for $255,000 and that the offer remained open until the commencement of trial. While the record does not establish that Ontario's offer engaged the formal consequences of Rule 49, it remains a relevant consideration under Rule 57.01. Ontario's settlement position was notably close to the damages that would have been awarded had liability been established.
9The plaintiff submits that no costs should be awarded because the litigation arose from a sexual assault and because the Victims' Bill of Rights reflects the importance of treating victims of crime with compassion and fairness.
10I do not accept that submission. The plaintiff relied on authorities where plaintiffs who were victims of sexual assault were successful in the litigation. This case is different. While I accepted the plaintiff's evidence that she was sexually assaulted by B.H., her claim against Ontario was unsuccessful. I do not read the Victims' Bill of Rights as displacing the ordinary principles governing costs in civil proceedings or creating a presumption that a successful defendant should be denied costs because the claim arises from a sexual assault.
11At the same time, the plaintiff's argument is not irrelevant. This was not a frivolous or vexatious proceeding. The plaintiff advanced serious allegations in good faith. The litigation involved matters of considerable personal importance to her. Those considerations do not justify denying costs to Ontario, but they are relevant to the exercise of my discretion in fixing the amount.
12The principal issue is therefore the quantum of costs.
13I am not persuaded that the full amount claimed by Ontario is fair or proportionate in the circumstances. The bill of costs reflects the involvement of numerous lawyers, law clerks and articling students over several years. Ontario was entitled to marshal the resources it considered necessary to defend the action. It does not follow that the entirety of those costs should be shifted to the plaintiff.
14Rule 57.01 directs the court to consider, among other things, the principle of indemnity and the amount of costs that an unsuccessful party could reasonably expect to pay. While this was a substantial and complex case, requiring the plaintiff to pay more than $500,000 in costs would, in my view, exceed what an unsuccessful litigant could reasonably have anticipated.
15On the other hand, Ontario achieved complete success. The proceeding was lengthy, factually difficult and legally complex. Ontario participated in discoveries, mediation, a pre-trial conference and a ten-day trial. Significant preparation was required. A modest costs award would fail to reflect those realities.
16Having regard to all of the factors set out in Rule 57.01, including Ontario's complete success, the complexity of the proceeding, the settlement history, the plaintiff's good-faith pursuit of a serious claim, and the need for proportionality and reasonable foreseeability, I conclude that costs fixed at $275,000 inclusive of fees, disbursements and HST are fair and reasonable.
17That amount provides Ontario with meaningful indemnification for the expense of successfully defending the action while avoiding a costs award that would be disproportionate in the particular circumstances of this case.
18Costs are therefore fixed in the amount of $275,000 inclusive of fees, disbursements and HST, payable by the plaintiff to His Majesty the King in Right of Ontario.
Justice H. Desormeau
Released: July 30, 2026